Judges Updating Law – Consistent with Binding Precedent?

Judges Updating Law – Consistent with Binding Precedent? “Now it is the function of the judges, I believe, to bring law up to date with the expectations and needs of our society.” – High Court Justice Lionel Murphy addressing the National Press Club 1980

 

Introduction

Law is one imperative process wherein a single society can move freely without doubts since, law is to abide its statutes in order not to violate one’s freedom of speech and expression and that laws are to be followed and to avoid innocence of something important in life.  

Law is at the core of fairness and equality among people and among society, activities which hold legal sanctions are effectively manifested within authoritative power and influence of judges, who decides cases at front lines. The Australian legal system and constitution labeling is strict when it comes to standards and norms wherein binding precedents come into the picture. Law is updating and changing several assumptions and specifications according to recent court laws and such amendments prior to judges’ function of keeping Australian law and legal system on a better strike and matter.

Discussion

According to several proponents, it is amiably a judge function to keep law alive and not stagnant to the end, updating to hear both sides of the story and never judge without due process, when law updates are striking deep, it is important to always be substantive to the rights of people as it is not so easy to always conform to protection of individual rights, fighting for truth and justice, thus giving Australian people imperative voice in the legal system. Judges functions are at top line of such binding precedents as true and real that, one of the primary roles of judges is to protect the rights of individuals who come before them, demonstrating commitment to goodwill of law and its creative purpose. Thus, Australian judge mission was to seek truth, to prove this truth to high courts and to ask the Australian Constitution to fashion the measured and appropriate sentence, delivering justice for example criminal justice system can only make city safer in lasting way if judges are holding the government to its burden of proof and issuing sentences that comport with society’s notions of fairness. 

Binding precedent can possibly be enacted by a judge must be followed as well as being set when lower courts are bound to follow the decisions of higher courts in the same hierarchy, where the facts of the case are similar. - Cornerstones of Australian Law, Chapter 4

 Aside, binding precedent stature does imply to ratio decedent from court of record upon creation of binding precedent and there only binds courts in the same hierarchy and such position of court of record in the court hierarchy determines whether the ratio is binding or not such examples from NSW, Old Court of Appeal decisions bind Supreme Courts. - Cornerstones of Australian Law, Chapter 4

Moreover, “strict view of doctrine of precedent claim that

the consistency, continuity and predictability resulting from adherence to binding precedent is essential to the maintenance of public confidence in the law and the efficient discharge by the judiciary of its functions, performed in lawful and predictable manner. On the other hand, Justice Lionel Murphy saw risk of serious injustice in too rigid an adherence to precedent, he even went so far as to suggest that it was an approach “eminently suitable for nation overwhelmingly populated by sheep”. - LK Murphy, “The Responsibility of Judges”, opening address for the First national Conference of Labor Lawyers, 29 June 1979, in G Evans (ed) Law Politics and the Labor Movement, Legal Service Bulletin, 1980 Clayton Victoria. Indeed, doctrine of precedent still continues to play an important role in the Australian legal system. In many, perhaps most, cases, particularly those decided in trial and intermediate courts, the identification and application of binding rule of legal precedent will ordinarily be decisive where a statute is not. - K M Hayne, “Letting Justice be Done Without the Heavens Falling”, (2001) 27 Monash University Law Review 12 at 17 cited from AUSTRALIAN BAR REVIEW PRECEDENT LAW, PRACTICE & TRENDS IN AUSTRALIA The Hon Justice Michael Kirby AC CMG pp. 1-22

 

There have been changes in the use of precedent in Australia over the past two decades. My purpose has been to describe the most important of these changes. Lawyers of the civil law tradition, and some common law practitioners, sometimes regard the discursive style of reasoning of common law courts as messy, imprecise and unfocused; the presence of dissenting opinions as destabilizing to the authority of the law; and the doctrine of precedent as obscure in practice and seemingly optional in application, at least in the higher courts. - SD Smith, Law’s Quandary (Harvard, 2004) at 55, cited from AUSTRALIAN BAR REVIEW PRECEDENT LAW, PRACTICE & TRENDS IN AUSTRALIA The Hon Justice Michael Kirby AC CMG pp. 1-22

 

Thus, it may not be obvious what such case decides because variety of issues were considered in the case or there was disagreement among the judges and it is necessary to determine which judges were in the majority. The judges’ words may be ambiguous or context-specific, and so you are required to interpret them very carefully. Furthermore, empowering communities has been product of winning individual cases against nuisance properties and as updated law come in, judges must thoughtfully work to give Australian community real voice into the legal system as for example, through education and by making the courthouse place where citizens feel welcome, safe as well as respected in doing so require command of substantive law, rules of evidence and procedure, dynamics of adversarial process. Australian legal system needs to strengthen its approach to probation and parole, small percentage of criminals committing most of crime, clearly need to do a better job of rehabilitating offenders, judges need to strictly supervise probation, and ensure that each offender receives the drug treatment, job training, education and mentoring from the community that he or she needs to get back on the right track. Australian based judges to better understand the communities in which incidents occur and prevent cases from being postponed or thrown out where police officer witnesses are required to testify in multiple courtrooms at the same time.

The need to modify the way judges are selected as high number of candidates in any given cycle relative to the number of vacancies, because there is usually a dearth of public information available to the voters regarding the credentials of the candidates, factors such as ballot position and money tend to predominate the election process. Opening the courtroom to the public and the media serves many important purpose, promote truthfulness from witnesses, it educates our citizens and helps give them faith that the system is working, and it encourages judges and attorneys to conduct them ethically and professionally. 

Conclusion

The judge must carefully consider the condition of the child and the alleged facts of a case and determine whether the need to protect the child and encourage his truthful testimony outweighs the benefits of an open trial. In exceptional cases, closing the courtroom will be warranted. Judges exercise judicial power, play integral role in the judicial process, as they apply the law and in some cases create the law and must take consideration of current political, social, moral and economic considerations and adhere to certain consensus of society. Then, judge seek relevant legislation and statutes, looks upon the constitution if required and seeks precedent in order to maintain the law as it stands. Maintaining judicial independence requires applying the law to the facts in every case and allowing no other factor to play  role in one’s decision. Therefore, judge must always decide cases based only on the law and evidence, he must also do more, to allow the public and the media to access the courtroom to the extent permitted by law, barring truly exceptional circumstances, would not allow public criticism of unpopular decisions, fear thereof to influence future outcomes. Judges must remember that independence from the other branches of government duty to strike down unconstitutional acts of branches, is what helps make Australia legal system unique.

References

Cornerstones of Australian Law, Chapter 4

K M Hayne, “Letting Justice be Done Without the Heavens Falling”, (2001) 27 Monash University Law Review 12 at 17 cited from AUSTRALIAN BAR REVIEW PRECEDENT LAW, PRACTICE & TRENDS IN AUSTRALIA The Hon Justice Michael Kirby AC CMG pp. 1-22

LK Murphy, “The Responsibility of Judges”, opening address for the First national Conference of Labor Lawyers, 29 June 1979, in G Evans (ed) Law Politics and the Labor Movement, Legal Service Bulletin, 1980 Clayton Victoria.

SD Smith, Law’s Quandary (Harvard, 2004) at 55, cited from AUSTRALIAN BAR REVIEW PRECEDENT LAW, PRACTICE & TRENDS IN AUSTRALIA The Hon Justice Michael Kirby AC CMG pp. 1-22

 

 

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